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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-CV-262

ANDREA LIU, APPELLANT,

v. 

U.S. BANK NATIONAL ASSOCIATION, APPELLEE.

Appeal from the Superior Court of the 

District of Columbia

(CAR-6539-14)

(Hon. Ronna L. Beck, Motions Judge)

(Argued January 31, 2017 Decided March 1, 2018)

Robert C. Gill for appellant.

S. Mohsin Reza for appellee. 

Before BLACKBURNE-RIGSBY, Chief Judge,

*

and GLICKMAN and THOMPSON,

Associate Judges. 

BLACKBURNE-RIGSBY, Chief Judge: In the District of Columbia, 

condominium associations are granted a “super-priority lien” over first mortgage 

lienholders, which permits an association to collect up to six months of unpaid 

 

*

 Chief Judge Blackburne-Rigsby was an Associate Judge at the time this 

case was argued. Her status changed to Chief Judge on March 18, 2017.

03/01/2018
2

assessments upon foreclosure on a condominium unit.1 In Chase Plaza 

Condominium Ass’n v. JPMorgan Chase Bank, N.A., 98 A.3d 166, 172 (D.C. 

2014), this court was asked to determine whether a condominium association’s 

foreclosure on its super-priority lien could extinguish an otherwise first-priority 

deed of trust or mortgage when the proceeds of the foreclosure sale were 

insufficient to satisfy the deed of trust or mortgage. We held in the affirmative—

that “a condominium association is permitted to foreclose on [its] six-month 

[super-priority] lien and [to] distribute the proceeds from the foreclosure sale first 

to satisfy [its super-priority] lien and then to satisfy any remaining liens in order of 

lien priority.” Id. We clarified that in such circumstances “[a]ny liens [including a 

first mortgage or first deed of trust] that are unsatisfied by the foreclosure-sale 

proceeds are extinguished, and the foreclosure-sale purchaser acquires free and 

clear title.” Id. 

The present case requires this court to determine a similar issue. We must 

decide whether, prior to the 2017 amendment to D.C. Code § 42-1903.13,

2

a 

 

1

 D.C. Code § 42-1903.13 (a)(2) (2012 Repl.).

2

Effective April 7, 2017, D.C. Code § 42-1903.13 was amended to add a 

provision requiring that the foreclosure sale notice expressly state whether the 

foreclosure sale is for the six-month priority lien and not subject to the first deed of 

 (continued...)
3

condominium association could choose to sell the condominium unit “subject to 

the first mortgage or first deed of trust” on the property, while at the same time 

enforcing its super-priority lien. We conclude that a condominium association 

could not foreclose on its super-priority lien while leaving the property subject to 

the unsatisfied balance of the first mortgage or first deed of trust—to find 

otherwise would contravene our holding in Chase Plaza. Accordingly, we reverse 

the trial court’s order granting summary judgment to U.S. Bank, which concluded 

that a condominium could foreclose on its super-priority lien while leaving the 

underlying mortgage lien intact, and remand for further proceedings consistent 

with this opinion.

I. Factual Background

On March 9, 2007, Jon Michael Lucas obtained a mortgage loan in the 

amount of $589,750 to finance his purchase of condominium unit 1003, located at 

301 Massachusetts Avenue, N.W., in the Sonata Condominium complex. Mr.

Lucas also executed a deed of trust and promissory note, which secured the loan on 

 

(. . . continued)

trust, or for more than the six-month priority lien and subject to the first deed of 

trust. D.C. Code § 42-1903.13 (c)(4)(B)(ii).
4

the condominium. Mr. Lucas’s mortgage loan was originally from Vanguard 

Mortgage and Title, Inc. (“VMT”) and the deed of trust and note were executed in 

VMT’s favor. The deed of trust was recorded in the land records of the District of 

Columbia. Mr. Lucas’s mortgage loan was later assigned to U.S. Bank (“Bank”), 

which also took possession of the note. 

In 2009, Mr. Lucas stopped paying both his monthly mortgage payments and 

his condominium assessments, the latter of which prompted the Sonata 

Condominium Unit Owners Association (“Sonata”) to seek foreclosure on the 

condominium, pursuant to D.C. Code § 42-1903.13 (a)(2), which entitles 

condominium associations to a super-priority lien for the most recent six months of 

unpaid condominium assessments. Between 2011 and 2014, Sonata scheduled 

several foreclosure sales for the condominium, but the sales were all cancelled 

after the Bank paid Mr. Lucas’s unpaid assessments. The Bank paid the 

assessments on Mr. Lucas’s behalf in order to preserve its lien on the 

condominium. These payments were secured under Mr. Lucas’s loan by the deed 

of trust.3 

 

3

 The “Condominium Rider,” which was signed by Mr. Lucas on March 9, 

2007, and which supplemented the deed of trust, states that Mr. Lucas and his 

Lender agreed that “[i]f [Mr. Lucas] does not pay condominium dues and 

 (continued...)
5

On May 1, 2014, Mr. Lucas was in default for unpaid condominium 

assessments, prompting Sonata to file a “Notice of Foreclosure Sale of the 

Condominium Unit for Assessments Due” with the District’s Recorder of Deeds. 

The notice stated that Mr. Lucas was in arrears to Sonata for $11,503.67.

4

Sonata 

sent the notice of the foreclosure sale to Mr. Lucas and all other interested parties, 

including the Bank; the notice stated that the foreclosure sale would not be held 

until thirty-one days past the date on which the notice was mailed, and that if the 

past due amounts were not paid in full by that time, the condominium would be 

sold at a public auction on June 4, 2014. On May 23, Sonata also sent the Bank a 

letter stating the amount that needed to be paid in order to stop the scheduled 

foreclosure sale. 

 

(. . . continued)

assessments when due, then [the] Lender may pay them. Any amounts disbursed 

by [the] Lender . . . shall become additional debt of [Mr. Lucas] secured by the 

[deed of trust].” 

4

 The amount Mr. Lucas owed was accelerated through 2014. According to 

the attorney conducting the foreclosure sale, Elizabeth Menist, if a unit is sold to a 

third-party, an adjustment is made so that the foreclosed unit owner is not charged 

for future assessments given that he or she no longer owns the unit. The thirdparty purchaser is then responsible for the monthly assessments as they become 

due.
6

Sonata publicly advertised the sale of the condominium in the Washington 

Post on May 23, May 28, and June 3, 2014. The advertisement stated that the 

condominium would be sold pursuant to D.C. Code § 42-1903.13, and that it 

would be “[s]old subject to a deed of trust for approximately $589,750.00 (as of 

03/09/2007)[,]” referencing the Bank’s deed of trust for Mr. Lucas’s mortgage 

loan. 

On June 4, Sonata held a public auction for the foreclosure sale and the 

condominium was sold to appellant Liu, the highest bidder at the auction, for 

$17,000. An accounting of the foreclosure sale, included in the record, 

demonstrates that, of the $17,000 purchase price for the condominium, Sonata 

deducted almost six months of unpaid condominium assessments, totaling 

$5,195.28, as well as interest on the assessments, attorney’s fees, and other 

expenses from the foreclosure sale.5 

The Bank attempted to pay the assessments owed to Sonata in order to stop 

the foreclosure sale. Sonata, however, did not receive the check from the Bank 

 

5

 Ultimately, there was a surplus of $7,512.92 after Sonata collected the 

assessments ($5,192.28), interest ($216.45), attorney’s fees and reimbursable costs 

($2,788.93), advertising costs ($885.08), the auctioneer’s commission ($425), and 

the lienholder’s portion of interest on unpaid balance from buyer ($30.04). 
7

until June 5, 2014, the day after the foreclosure sale. Accordingly, the Bank’s 

check was returned with a letter indicating that the condominium had already been 

sold to a third-party purchaser. Ms. Liu recorded the deed of trust, dated July 1, 

2014, which included a provision inserted by Sonata, stating: “The hereinafter 

described property is sold subject to a deed of trust recorded in the Office of the 

Recorder of Deeds at Instrument Number 2007035647.” 

On October 16, 2014, the Bank filed a claim for judicial foreclosure against 

Mr. Lucas, as the mortgagor in default under the note, and later joined Ms. Liu, the 

new record owner of the condominium, as a defendant in the action. In its claim, 

the Bank asserted its rights as the beneficiary of the deed of trust, and also notified 

the court that Mr. Lucas’s loan had been accelerated, and that he owed 

$799,034.23 under the note.6 In her defense, Ms. Liu maintained that she 

purchased the condominium at the foreclosure sale, free and clear of the Bank’s 

mortgage lien, pursuant to both D.C. Code § 42-1903.13 (a)(2) and this court’s 

 

6

 In May 2014, the Bank sent Mr. Lucas a demand letter, and attached a 

“Payoff Quote” at the back of the letter. According to the Bank’s quote, Mr. Lucas 

owes $589,749.85 for the principal balance on the note, $10,487.96 for an escrow 

advance, $62,873.59 for a corporate advance, $135,855.25 in interest, and $67.58 

in late charges. These charges equate to $799,034.23, the total amount the Bank is 

currently seeking under the note. 
8

decision in Chase Plaza.

7

 Both Ms. Liu and the Bank moved for summary 

judgment before the trial court. 

On February 3, 2016, the trial court granted the Bank’s motion for summary 

judgment and denied Ms. Liu’s motion for summary judgment. The trial court 

acknowledged that, at the time of Sonata’s foreclosure sale, the law was unclear 

regarding the effect of a condominium association’s foreclosure sale, pursuant to 

its super-priority lien, on a bank’s first-priority mortgage lien. 

Despite this lack of clarity in the law at the time of Ms. Liu’s purchase, the 

trial court emphasized that the advertisements, the memorandum of sale to Ms. 

Liu, and the deed of trust all specified that the property was sold to Ms. Liu subject

to the Bank’s mortgage lien. Thus, it was “abundantly clear” that Ms. Liu was 

purchasing the property subject to the Bank’s lien. Furthermore, the court noted 

that Ms. Liu had testified at a deposition that the property was worth between 

 

7 On August 28, 2014, a few months after Ms. Liu’s purchase of the 

condominium at the foreclosure sale, we issued our decision in Chase Plaza. 

Relying on the plain language and legislative history of the super-priority lien 

provision, as well as general principles of foreclosure law, we held that “a 

condominium association can extinguish a first deed of trust by foreclosing on its 

six-month super-priority lien under D.C. Code § 42-1903.13 (a)(2).” Chase Plaza, 

supra, 98 A.3d at 178.
9

$700,000 and $750,000, and that the District of Columbia Office of Tax and 

Revenue assessed the condominium at a value of $719,930. The court stated that 

the $17,000 purchase price “obviously reflected the understanding that the 

Property was subject to [the Bank’s] lien.” Accordingly, the trial court concluded 

that “[i]t would be an inequitable windfall and contrary to the parties’ expectations 

to permit Ms. Liu to disavow [the Bank’s] mortgage . . . and would impose an 

enormous foreclosure deficiency on [] [Mr.] Lucas if Ms. Liu’s purchase is not 

subject to [the Bank’s] lien, as was contemplated at the foreclosure sale.” This 

appeal followed.

II. Discussion

We review a trial court’s order granting summary judgment de novo. Chase 

Plaza, supra, 98 A.3d at 172. In determining whether summary judgment was 

appropriate, we view the evidence in the light most favorable to the non-prevailing 

party and we draw all reasonable inferences in that party’s favor. See Woodland v. 

Dist. Council 20, 777 A.2d 795, 798 (D.C. 2001). “Summary judgment is only 

appropriate where there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law.” Chase Plaza, supra, 98 A.3d at 172

(citation and internal quotation marks omitted). 
10

A. Chase Plaza

In Chase Plaza, this court was asked to, for the first time, address the proper 

interpretation of a condominium association’s super-priority lien for unpaid 

assessments under D.C. Code § 42-1903.13 (a)(2), and the impact of an 

association’s foreclosure, pursuant to a super-priority lien, on a bank’s first deed of 

trust or first mortgage. We explained that, under the District of Columbia 

Condominium Act, condominium association liens for unpaid assessments are 

“split[] . . . into two liens of differing priority[.]” Chase Plaza, supra, 98 A.3d at 

173. First, the condominium association is granted a lien for the most recent six 

months of unpaid condominium assessments, which is “higher in priority than the 

first mortgage or first deed of trust[,]” and commonly referred to as a “superpriority lien.” Id.; see also D.C. Code § 42-1903.13 (a)(2) (stating that a 

condominium association’s lien “shall [] be prior to a mortgage or deed of trust . . . 

to the extent of the common expense assessments . . . which would have become 

due in the absence of acceleration during the [six] months immediately preceding 

institution of an action to enforce the lien . . .”). Second, the Act grants the 

condominium association a lien for any remaining unpaid assessments beyond the 

most recent six-month period. See D.C. Code § 42-1903.13 (a). However, this 
11

second lien is “lower in priority than the first mortgage or first deed of trust.” 

Chase Plaza, supra, 98 A.3d at 173. 

Thus, under the circumstances presented here, where a condominium unit 

owner defaults on both his mortgage payments and his condominium assessments, 

the condominium association’s super-priority lien for the most recent six months of 

assessments, is higher in priority than the first mortgage or first deed of trust on the 

condominium unit. See D.C. Code § 42-1903.13 (a)(2); Chase Plaza, supra, 98 

A.3d at 173. Importantly, the Act also expressly prohibits “variation by 

agreement,” which prevents parties from contracting around the statute: “Except as 

expressly provided by this chapter, a provision of this chapter may not be varied by 

agreement and any right conferred by this chapter may not be waived.” D.C. Code 

§ 42-1901.07.

Chase Plaza involved facts similar to those presented in this case and 

therefore, is central to our consideration. In Chase Plaza, Chase Plaza 

Condominium Association, Inc. instituted foreclosure proceedings against a 

condominium unit owner to collect six months of unpaid assessments, pursuant to 

its super-priority lien under D.C. Code § 42-1903.13 (a)(2). Chase Plaza, supra,

98 A.3d at 168. Chase Plaza’s notice of the foreclosure sale “specified that the 
12

foreclosure sale would not be subject to the first deed of trust” and thus, the bank’s 

first deed of trust, as a lien lower in priority than the condominium association’s 

super-priority lien, would not be protected by the foreclosure sale. Id. After the 

condominium was sold to the highest bidder at the sale, JPMorgan Bank, as holder 

of the note for the first deed of trust, filed a complaint against Chase Plaza and the 

new record owner, requesting that the trial court set aside the foreclosure sale and 

declare that JPMorgan Bank held title to the unit. Id. at 169. The trial court 

granted summary judgment to JPMorgan Bank on the basis that “Chase Plaza 

could not lawfully extinguish [JPMorgan Bank’s] first deed of trust[.]” Id. 

Accordingly, the trial court voided Chase Plaza’s foreclosure sale “because the unit 

had not been sold subject to the first deed of trust.” Id. 

We reversed the trial court’s decision, recognizing the general and well 

settled principle of foreclosure law that “liens with lower priority are extinguished 

if a valid foreclosure sale yields proceeds insufficient to satisfy a higher-priority 

lien[.]” Id. at 173. We observed further that the plain language of the superpriority lien provision, under D.C. Code § 42-1903.13 (a)(2), did not suggest that 

the Council of the District of Columbia intended to deviate from this general 

principle. Id. at 174. Upon a review of the legislative history of the super-priority 

lien provision, we noted that the Council intended for the super-priority lien to give 
13

condominium associations “maximum flexibility in collecting unpaid 

condominium assessments.” Id. (citing D.C. Council, Report on Bill 8-65, at 3 

(Nov. 13, 1990)). We also noted that our super-priority lien provision had been 

modeled after similar provisions from the Uniform Common Interest Ownership 

Act (“UCIOA”) and the Uniform Condominium Act (“UCA”), and that the 

drafters’ official comments under those Acts indicated that they understood that a 

condominium association’s foreclosure on its super-priority lien would extinguish 

a first mortgage or first deed of trust. Id. However, the drafters “expected that 

mortgage lenders would take the necessary steps to prevent that result, either by 

requiring payment of assessments into an escrow account or by paying assessments 

themselves to prevent foreclosure.” Chase Plaza, supra, 98 A.3d at 174-75; see 

also UCIOA § 3-116, cmt. 2; UCA § 3-116, cmt. 2. For these reasons, we 

concluded that the condominium association’s foreclosure pursuant to its superpriority lien effectively extinguished JPMorgan Bank’s first deed of trust. Chase 

Plaza, supra, 98 A.3d at 175, 178. 

B. Analysis of Super-Priority Lien Provision

On appeal, neither party disputes this court’s holding in Chase Plaza. Ms. 

Liu argues that the decision supports a conclusion that she purchased the 
14

condominium at Sonata’s foreclosure sale, free and clear of the Bank’s mortgage 

lien. She contends that the anti-waiver provision of the Condominium Act 

precludes a condominium association from enforcing its super-priority lien at a 

foreclosure sale, subject to a first mortgage or deed of trust.8

Conversely, the Bank argues that the trial court properly granted its motion 

for summary judgment on equitable grounds because “the sale’s advertisement, the 

auctioneer’s statements [] at the sale, the Memorandum of Purchase signed by Ms. 

Liu, and the Trustee’s Deed [] recorded by Ms. Liu” all demonstrate that the 

condominium was sold to Ms. Liu, subject to the deed of trust. The Bank argues 

that Chase Plaza is not applicable to this case because Sonata did not enforce its 

super-priority lien at its foreclosure sale, but instead elected to sell the 

condominium subject to its deed of trust. The Bank also challenges Ms. Liu’s 

purchase at Sonata’s foreclosure sale on other grounds, which we address later in 

this opinion.

 

8

 Ms. Liu further asserts that the provisions in the advertisement, on her 

memorandum of sale, and in the deed of trust, which indicated that the property 

was sold subject to the deed of trust, were only included because of the trial court’s 

erroneous ruling in Chase Plaza, which was later reversed by this court. Notably, 

Ms. Liu mentions the attorney who conducted the foreclosure sale of the property 

at issue in this case was the same attorney who conducted the foreclosure sale in 

Chase Plaza. 
15

To begin, we agree with Ms. Liu that the anti-waiver provision of the 

Condominium Act, D.C. Code § 42-1901.07, precludes a condominium association 

from exercising its super-priority lien while also preserving the full amount of the 

Bank’s unpaid lien. D.C. Code § 42-1901.07 states “[e]xcept as expressly 

provided by this chapter, a provision of this chapter may not be varied by 

agreement and any right conferred by this chapter may not be waived.” (emphasis 

added). As we stated in Chase Plaza, none of the provisions of the chapter 

expressly indicate that a super-priority lien may be contracted away by the parties 

or waived by the condominium association. 

Furthermore, permitting a condominium association to exercise its superpriority lien while also preserving the full amount of the Bank’s unpaid lien, 

defeats the Council’s purpose in enacting the super-priority lien. The superpriority lien provision effectively shields condominium associations from pressure 

by lenders to require foreclosure-sale purchasers to agree that the property is 

subject to the first mortgage, a term that could reduce the number of interested 

bidders and impair the condominium association’s ability to recover unpaid 

assessments.
16

Here, the record demonstrates that Sonata enforced its lien for Mr. Lucas’s 

most recent six months of unpaid assessments, when it sold the condominium to 

Ms. Liu at the foreclosure sale. The foreclosure notice to Mr. Lucas and Sonata’s 

letter to the Bank indicated that Sonata was seeking to collect $11,503.67 in unpaid 

assessments and related costs, and that if the amount was not paid, Sonata would 

institute foreclosure proceedings on the unit. 

The Bank argues, however, that because the terms of the sale indicated that 

the unit would be sold subject to its first deed of trust, Sonata did not actually 

enforce its super-priority lien. The Bank also maintains that a condominium 

association may agree to subordinate its super-priority lien to a first deed of trust 

during a foreclosure sale. We disagree. Such a reordering of lien priorities would 

effectively constitute a waiver by the condominium association of its super-priority 

lien, which is not permitted under D.C. Code § 42-1901.07. That section expressly 

states that any right conferred under the Condominium Act may not be waived. 

“[W]hen the language of a statute is plain and unambiguous, we are bound by the 

plain meaning of that language.” See Hudson Trail Outfitters v. District of 

Columbia Dep’t of Emp’t Servs., 801 A.2d 987, 990 (D.C. 2002) (citation and 

internal quotation marks omitted). Thus, any attempt by a condominium 

association or a holder of a first mortgage or deed of trust to have a condominium 
17

association’s super-priority lien waived or varied by contract is invalid, as a matter 

of law. 

To be clear, we are not stating that a foreclosing condominium association is 

required to foreclose pursuant to its super-priority lien.9 However, here, where 

Sonata collected on only the most recent six months of unpaid assessments, we are 

satisfied that Sonata enforced its super-priority lien at the sale.10 Under these 

circumstances, if the proceeds of the sale are insufficient to cover the first deed of 

trust, then the first deed of trust must be considered effectively extinguished. See

 

9

 We do not address the question of whether a lien covering a period in 

excess of six months prior to the 2017 amendment to D.C. Code § 42-1903.13 is 

properly conceptualized as a split-lien, which includes a six-month portion entitled 

to super-priority status, or as one lien, all of which is considered to be lower in 

priority to the first mortgage or deed of trust. 

We also refrain from addressing the issue of whether the foreclosure sale 

should be set aside, given that the sole count in the complaint was one for judicial 

foreclosure, and in light of the Bank’s statement that it “does not seek to set aside 

the June 4, 2014 sale in this action.” 

10

 The attorney conducting the foreclosure sale, Elizabeth Menist, also 

conducted the foreclosure sale in Chase Plaza. In this case, Ms. Menist testified 

that her intention was for Sonata to foreclose on a lien for January through 

December, 2014. However, given that the sale occurred on June 4, 2014, Sonata 

foreclosed on a lien covering slightly less than the six months entitled to superpriority status. As discussed in note 4, supra, an adjustment is made so that the 

foreclosed unit owner is not charged for future assessments.
18

Chase Plaza, supra, 98 A.3d at 176 (stating “the general rule that foreclosure on a 

lien with greater priority extinguishes liens with lower priority”). The plain 

language of D.C. Code § 42-1903.13 (a)(2), the super-priority lien provision, does 

not indicate an intent to deviate from this general principle. Id. at 175.

C. Equitable Estoppel

The Bank contends that the trial court properly concluded that Ms. Liu was 

equitably estopped from claiming that its mortgage interest was extinguished at the 

sale. We have recognized that “[a] party raising equitable estoppel must show that 

he changed his position prejudicially in reasonable reliance on a false 

representation or concealment of material fact which the party to be estopped made 

with knowledge of the true facts and intent to induce the other to act.” Nolan v. 

Nolan, 568 A.2d 479, 484 (D.C. 1990) (citation and internal quotation marks 

omitted). In response, Ms. Liu asserts that the provisions in the advertisement, on 

her memorandum of sale, and in the deed of trust, which indicated that the property 

was sold subject to the deed of trust, were only included because of the trial court’s 

erroneous ruling in Chase Plaza, which was later reversed by this court. 
19

Here, the record does not support the trial court’s application of the equitable 

estoppel doctrine to preclude Ms. Liu from maintaining that her purchase of the 

condominium was not subject to the Bank’s deed of trust. To begin, the Bank has 

not demonstrated that it reasonably relied on the advertised terms of sale to protect 

its mortgage interest. To the contrary, the Bank attempted to pay the six months of 

condominium assessments in order to stop the foreclosure sale, but failed to make 

the payment on time. Moreover, although the Bank contends that it “reasonably 

relied upon Ms. Liu’s actions in accepting the terms of the sale by not moving to 

vacate the sale after it occurred[,]” this argument lacks merit—the Bank was aware 

through its loan servicer that the state of the law on super-priority liens was in flux 

at the time, and that the Bank’s interest could be subordinate to Sonata’s interest in 

the event of a foreclosure sale. 

Furthermore, the legislative history of the super-priority lien provisions and 

public policy concerns related to ensuring a condominium association’s collection 

of unpaid assessments, also support a conclusion that equitable estoppel is not 

appropriate in this case. See Sears v. Sears, 293 F.2d 884, 887 (D.C. Cir. 1961) 

(“[A] court of equity, in determining whether to interpose the bar of equitable 

estoppel, must consider all the factors of the particular case at bar, the parties 

involved, the effect of the ultimate decision on third parties who are not before the 
20

court, the nature of the rights sought to be vindicated and, as well, public policy as 

expressed by pertinent statutes and prior judicial declarations.”). For example, in 

2013, the Joint Editorial Board for Uniform Real Property Acts (“JEB”)—a board 

established by the Uniform Law Commission (“ULC”)—created a report, to in 

part, address the appropriate interpretation of the six-month limited priority lien 

provision.11 See JEB Report, supra note 11, at 6. In its report, the JEB discussed 

how the depressed real estate market has led to incentives for banks to intentionally 

delay foreclosure proceedings, at the expense of condominium associations, which 

are forced to forgo timely payments of assessments, and at the expense of 

condominium association residents who “bear the consequences of default by a 

[condominium unit owner] [on] assessment obligations.” Id. at 4. In this case, Mr. 

Lucas was in default on both his mortgage payments and his condominium 

assessments for a lengthy period, from 2009 to 2014, yet the Bank waited five 

years to institute foreclosure proceedings on the unit. In addition, the 

 

11

 The JEB monitors all uniform real property acts and “provides guidance 

to the [ULC] and others regarding potential subjects for uniform laws relating to 

real estate[.]” Report of the Joint Editorial Bd. for Unif. Real Prop. Acts, The SixMonth “Limited Priority Lien” for Association Fees Under the Uniform Common 

Interest Ownership Act (June 1, 2013) (“JEB Report”). The Board is made up of 

representatives from the ULC, the American Bar Association’s Real Property, 

Trust and Law Section, and the American College of Real Estate Lawyers, and 

liaisons from the American College of Mortgage Attorneys, the American Land 

Title Association, and the Community Associations Institute.
21

condominium association had to file several notices of foreclosure in an effort to 

obtain payments to cover Mr. Lucas’s defaults on the assessments. It is this 

prejudice to condominium associations from extended delays by a bank to institute 

foreclosure on a condominium unit, which the super-priority lien was intended to 

prevent. 

Finally, and most importantly, we note that equitable relief is not available 

when granting such relief would contravene the express provision of a statute. The 

judicial system is charged with enforcing public policy as embodied by legislative 

statute. “It is a basic maxim that equity is ancillary, not antagonistic, to the law. 

Equitable relief is not available when the grant thereof would violate the express 

provision of a statute.” Dep’t of Transp. v. Am. Ins. Co., 491 S.E.2d 328, 331 (Ga. 

1997) (citation and internal quotation marks omitted); see also T.F. v. B.L., 813 

N.E.2d 1244, 1253-54 (Mass. 2004) (citation and internal quotation marks omitted) 

(stating that “[e]quity is not an all-purpose judicial tool by which the right thing to 

do can be fashioned into a legal obligation possessing the legitimacy of legislative 

enactment”). Although it may seem like Ms. Liu was able to procure the property 

for a relatively low amount of money through the foreclosure process, any 

concerns about this process are properly addressed through the legislative process. 

Moreover, the Bank still retains a claim against Mr. Lucas, the borrower under the 
22

Bank’s mortgage loan, from whom the Bank can seek to recover the remaining 

balance owed on Mr. Lucas’s mortgage.

D. The Bank’s Additional Claims 

The Bank makes a few additional challenges to Sonata’s foreclosure sale, 

which warrant brief discussion. First, the Bank argues that Sonata was permitted 

to conduct the foreclosure sale subject to the Bank’s first deed of trust, because a 

secured party bank and a condominium association may agree to subordinate a 

condominium association’s super-priority lien to a bank’s mortgage lien under the 

JEB Report. However, this is a mischaracterization of the JEB Report. Example 

One of the JEB Report addresses an instance in which a unit owner is in default on 

both its mortgage with the bank and its common expense assessments, and the 

bank institutes foreclosure proceedings on the unit. JEB Report, supra note 11, at 

7-8. Example One clarifies that a bank’s foreclosure on the unit will not extinguish 

the association’s super-priority lien because that lien is senior to the bank’s lien. 

Id. at 7. Instead, the association’s super-priority lien will transfer to the proceeds 

of the sale, and the buyer at the foreclosure sale will take title to the unit, subject to 

the association’s six-month super-priority lien. Id. at 7-8. In this example, the JEB 

Report mentions that as an alternative, the bank and the association may agree that 
23

the foreclosure sale will deliver clear title to the buyer, with the proceeds of the 

sale being distributed first to the association to cover its six months’ worth of 

unpaid assessments prior to being applied to the bank’s unpaid mortgage balance. 

Id. at 8. This alternative, however, does not suggest that the association may 

subordinate its senior lien status; to the contrary, it reinforces the principle that an 

association’s six-month priority lien has “true priority” over the bank’s subordinate 

lien. See id.

Next, the Bank argues that Sonata could only impose its six-month superpriority lien through a judicial foreclosure, and maintains that because the 

association conducted a non-judicial foreclosure in this case, the sale could not 

operate to extinguish the Bank’s mortgage lien. We disagree. The Bank cites to 

the version of D.C. Code § 42-1903.13 (a)(2) in effect on the date of the 

foreclosure sale, which states that:

[t]he lien shall also be prior to a mortgage or deed of trust . . . to the 

extent of the common expense assessments based on the periodic 

budget adopted by the unit owners’ association which would have 

become due in the absence of acceleration during the 6 months 

immediately preceding institution of an action to enforce the lien. 

However, the statute also contemplates non-judicial enforcement of liens, as 

occurred in Chase Plaza—D.C. Code § 42-1903.13 (c)(1) expressly states that 

“[t]he unit owners’ association shall have the power of sale to enforce a lien for 
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assessments against a condominium unit . . . unless the power of sale procedures 

are specifically and expressly prohibited by the condominium instruments.” 

(emphasis added). Here, the condominium by-laws explicitly authorize a nonjudicial foreclosure, stating that “[t]he lien for assessments may be foreclosed in 

the manner provided by the laws of the District of Columbia either, at the option of 

the Board of Directors, by a sale in a non-judicial proceeding or by suit brought in 

the name of the Board of Directors, acting on behalf of the Association.” 

Moreover, effective June 21, 2014, D.C. Code § 42-1903.13 (a)(2) was amended to 

include language referring to “institution of an action to enforce the lien or 

recordation of a memorandum of lien against the title to the unit by the unit 

owners’ association.” “While the action of a later Council usually does not 

provide definitive evidence of the intent underlying the action of a former 

Council,” see Coleman v. Cumis Ins. Soc’y, 558 A.2d 1169, 1172-1173 (D.C. 

1989), the fact that the 2014 “clarif[ication]” is consistent with the official 

comments of the UCIOA and the UCA, discussed below, “lends some support for 

our view that . . . the [earlier] Council intended to” provide for foreclosure of a

super-priority lien through a condominium association’s power of sale. Id. 

The official comments of the UCIOA and the UCA for the super-priority 

lien provisions state that an association’s super-priority lien may be foreclosed in 
25

the same manner in which a mortgage on real estate is foreclosed. See UCIOA 

§ 3-116 (k)(1); UCA § 3-116 (a); see also JEB Report, supra note 11, at 9 n.8 

(“[A]n association may foreclose its lien by non-judicial proceedings if the state 

permits non-judicial foreclosure.”). In this jurisdiction, a mortgage lender may 

foreclose on a unit through judicial foreclosure or non-judicial foreclosure, and 

accordingly, Sonata had the option of pursuing either type of foreclosure in this 

case. See D.C. Code §§ 42-815, -816 (2012 Repl.). Thus, Sonata was not 

precluded from pursuing non-judicial enforcement of its super-priority lien. 

Lastly, the Bank argues that Sonata’s foreclosure sale could not have been 

conducted pursuant to its super-priority lien because Sonata had already previously 

attempted to foreclose on the unit. The Bank, relying on Example Three in the 

JEB Report, is correct that the super-priority lien provision “does not . . . authorize 

an association to file successive lien enforcement actions every six months as a 

means to extend the association’s limited lien priority.” JEB Report, supra note 

11, at 12. Example Three in the JEB Report, however, is based on a case in which 

a foreclosure action is already pending at the time the association attempts to file 

an additional foreclosure action; as a foreclosure action had already been initiated, 

the additional action was not necessary to enforce the association’s lien and 

represented an attempt to extend the association’s lien priority beyond the six 
26

months entitled to super-priority status. Although this precludes an association 

from obtaining super-priority status on an amount in excess of six months while a 

foreclosure action is pending, it does not preclude an association from enforcing 

another super-priority lien if there is no action pending. 

In JPMorgan Chase Bank, N.A. v. SFR Investments Pool 1, LLC, the United 

States District Court for the District of Nevada stated that it could not find “any 

authority stating that an [association] is precluded from bringing multiple 

enforcement actions to enforce entirely separate liens (with super[-]priority 

portions) for unpaid assessments against the same parcel of property.” 200 F. 

Supp. 3d 1141, 1167 (D. Nev. 2016). The court recognized that the JEB Report 

barred multiple attempts to “enforce the super[-]priority portion of its lien multiple 

times during the pendency of the same bank foreclosure action” but that no such 

bar existed for a subsequent enforcement action to enforce a separate lien when no 

other foreclosure action was pending. Id. at 1168. Similarly, in this case, although 

Sonata had previously collected on a separate super-priority lien, they were not 

barred from filing a successive foreclosure action when no such action was 

pending. 
27

III. Conclusion

In sum, we conclude that a condominium association, acting on its sixmonth super-priority lien for unpaid condominium assessments, pursuant to D.C. 

Code § 42-1903.13 (a)(2), may not conduct its foreclosure sale subject to the first 

deed of trust. Although Sonata’s foreclosure sale in this case was purportedly 

subject to the Bank’s deed of trust, the anti-waiver provision of D.C. Code § 42-

1901.07, precludes a condominium association from waiving the priority of its 

super-priority lien or exercising its super-priority lien while also preserving the full 

amount of the Bank’s unpaid lien. Thus, when Sonata enforced its super-priority 

lien to collect six months of unpaid assessments at the foreclosure sale, the Bank’s 

first deed of trust for the condominium was effectively extinguished and Ms. Liu 

purchased the condominium free and clear of the Bank’s deed of trust. 

Accordingly, we reverse the trial court’s order granting summary judgment to the 

Bank and remand for further proceedings.

So ordered.